The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Monday, December 01, 2014

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

That was Anthony Elonis on Facebook talking about his wife. He got convicted for making threats over the internet and was sentenced to 3 years in federal prison. This morning, the Supreme Court will hear his case. From the AP:

The case has drawn widespread attention from free-speech advocates
who say comments on Facebook, Twitter and other social media can be
hasty, impulsive and easily misinterpreted. They point out that a
message on Facebook intended for a small group could be taken out of
context when viewed by a wider audience.
"A statute that proscribes speech without regard to the speaker's
intended meaning runs the risk of punishing protected First Amendment
expression simply because it is crudely or zealously expressed," said a
brief from the American Civil Liberties Union and other groups.
But so far, most lower courts have rejected that view, ruling that a
"true threat" depends on how an objective person perceives the message.
For more than four decades, the Supreme Court has said that "true
threats" to harm another person are not protected speech under the First
Amendment. But the court has been careful to distinguish threats from
protected speech such as "political hyperbole" or "unpleasantly sharp
attacks."
Elonis claims he was depressed and that his online posts under the
pseudonym "Tone Dougie" were a way to vent his frustration after his
wife left him and he lost his job working at an amusement park. His
lawyers say the posts were heavily influenced by rap star Eminem, who
has also fantasized in songs about killing his ex-wife.
But Elonis' wife testified that the comments made her fear for her life.
After she obtained a protective order against him, Elonis wrote a
lengthy post mocking court proceedings: "Did you know that it's illegal
for me to say I want to kill my wife?"
A female FBI agent later visited Elonis at home to ask him about the
postings. Elonis took to Facebook again: "Little agent lady stood so
close, took all the strength I had not to turn the bitch ghost. Pull my
knife, flick my wrist and slit her throat."
Elonis was convicted of making threats of violence and sentenced to
nearly four years in federal prison. A federal appeals court rejected
his claim that his comments were protected by the First Amendment.
The Obama administration says requiring proof that a speaker intended
to be threatening would undermine the law's protective purpose. In its
brief to the court, the Justice Department argued that no matter what
someone believes about his comments, it does not lessen the fear and
anxiety they might cause for other people.
"The First Amendment does not require that a person be permitted to
inflict those harms based on an unreasonable subjective belief that his
words do not mean what they say," government lawyers said.
The National Center for Victims of Crime, which submitted a brief
supporting the government, said judging threats based on the speaker's
intent would make stalking crimes even more difficult to prosecute.
"Victims of stalking are financially, emotionally and socially
burdened by the crime regardless of the subjective intent of the
speaker," the organization said.

I posted earlier about Judge Rakoff's article about innocent people pleading guilty. There's an interesting exchange between Judge Baylson and Judge Rakoff in the New York Review of Books. Baylson concludes:

No judge wants to see an innocent person prosecuted, convicted, or sent
to prison. A criminal justice system must ensure that fundamental
principle. Pretending that plea bargains or sentencing guidelines have
led to the imprisonment of the innocent is not just incorrect, but
impugns the honesty of prosecutors and the diligence of judges.

And Rakoff's intro from his reply:

Barely a month goes by without someone who pled guilty being exonerated
and released from prison. For example, the National Registry of
Exonerations recently established by the University of Michigan Law
School currently lists 162 such persons, or nearly 11 percent of the
1,476 post-conviction exonerations that have been publicly reported
since 1989. If Judge Baylson’s views of the current system were correct,
these figures would be zero. Instead, they are just the tip of the
iceberg.

To say, as Judge Baylson does, that “most” defendants who plead guilty
are in fact guilty simply dodges the issue of how many innocent people
are being coerced into pleading guilty by the potential for draconian
sentences effectively controlled by the prosecutor. And it is ironic
that Judge Baylson should seek to justify federal prosecutors’ prior
policy of charging the most serious provable crime as “truth in
charging” when, as the Aaron Swartz case mentioned by his father and
described below illustrates, the policy often has served not as a
reflection of what everyone understood was the true nature of the
alleged crime, but as a device to help extract a guilty plea to a lesser
offense. Indeed, it was partly this effect that led the current
attorney general to abandon the policy, stating that in many cases such a
policy was not “appropriate.”

This is an important point:

Judge Baylson suggests both that the defendant has a strong weapon in
the form of the presumption of innocence and that the prosecutor has a
high burden of proof. But this suggestion really only comes into play if
the defendant is willing to take the risk of going to trial and likely
suffering a huge sentence if he loses. At the plea bargain stage,
moreover, the prosecutor not only credits the un-cross-examined evidence
received from his police force but also knows that, since 97 percent of
the cases will be resolved by pleas, the prosecutor’s own risk of
losing is minimal.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.